Finding Your Way Through the Internet's Legal Minefield

The Internet and e-mail have broughtwith them countless business advantages - and, not surprisingly, a goodly amountof trouble spots. They can put a company on the legal defensive (discriminatoryor harassing e-mails that return to haunt) or the offensive (employees blastingmanagement on Internet chat rooms). Marlene Muraco, an attorney in the San Jose,California, office of law firm Littler Mendelson, gives an update on thisever-evolving employment-law topic.

What’s the most pervasive problemin this area? E-mail honestly is presenting thebiggest problem. There are situations in which people use e-mail inappropriately- to harass somebody, or to tell off-color jokes. People will do and say thingsin an e-mail that in a billion years they’d never type up in a memo, so youget e-mail playing a role in what would otherwise be a run-of-the-millemployment-law case.

What usually happens? Say that somebody was terminated forpoor performance, and you have a manager who was sending flip e-mails about thatperson, which he never should have done. It complicates what would have been avery straightforward case. The thing about e-mail is it’s never gone - youthink it’s gone - you deleted it, he deleted it, she deleted it - but it’snot gone. There have been cases where the plaintiff’s attorney says, “Let myexpert have a little look-see on your computer,” and all of a sudden all thesee-mails appear that you thought were long gone.

What does a good e-mail policy cover? You need to have something in therelike: don’t use it to harass; sending, saving, or viewing offensive materialsis prohibited. Prohibit them from sending e-mail or other communications thatmask their identity or indicate it’s someone else. They should not accesstechnical resources using another employee’s password. Prohibit solicitationfor non-company business or activities; if you allow it, then the unions cancome in and use your e-mail systems if they want to organize.

Don’t distributeor copy copyrighted material such as software through the mail system unlessyou’ve confirmed the company has the right to do that. Because the companycould theoretically be held liable for the employee’s copyright violationsmade while using the employer’s system. I get a copy of Word Perfect at workand distribute it - that’s a no-no. Those are all good things to includespecifically relating to e-mail.

What about a general technology policy,covering Internet usage? An employer needs to make a decisionabout how they want their employees to use the technological resources at work.It’s nice to say, Thou shalt never ever send a personal e-mail. Good luck. Sodecide where the limits can be. And when you write it, there should be adisparity between what you reserve the right to do in writing and how thecompany actually administers the policy. It’s kind of like at-will employment:you want to always reserve the right to terminate someone at will, but not manyemployers do it; it’s not good for morale.

So with respect to e-mail andInternet use, the employer should clearly explain that they own all thoseresources. Then you want to reduce the employee’s reasonable expectation ofprivacy in usage of those resources. The main claim an employer is going to getis an invasion-of-privacy claim.

And a good policy can help stave offthose claims? When a court is looking at aninvasion-of-privacy claim, they do a balancing test between what was theemployee’s reasonable expectation of privacy and what was the employer’slegitimate business reason for doing what they did. As an employer, you want toreduce as much as possible the employee’s legitimate expectation of privacy.You do that by saying, “We reserve the right to access any of this technologyat any and all times. If during the course of your employment you use thesesystems, you have to know we may be looking at all the information in youre-mail messages or your Internet surfing history.” So you have the warning.

Can you use filtering software thatblocks access to certain sites? You can do that legally to blockcertain sites, and you don’t have to tell employees - they will figure it out.You can block whatever kinds of sites you choose. You’re providing thecomputer and access; it’s your workplace.

What about monitoring the sites thatemployees go to? If you decide to monitor where they goon the Internet, there are different ways to do that. You could log on to mycomputer and open Internet Explorer and look at my history. That’s differentfrom a network that all Internet traffic is going out through, with software inplace that automatically generates reports of everywhere that everyone has beenevery day. I think going on to an individual’s computer is more intrusive, butin either case I’d say you can do it - but you have to tell employees you’redoing it.

What about Internet chat sites whereemployees blast their company’s policies or a particular manager? People aren’t totally stupid. Theydon’t sign on and say, “I’m Joe Smith and I work here and I think my bossstinks.” They get an alias name on Yahoo! or something. If you want to findout who these people really are, you have to institute legal processes to issuesubpoenas to third-party providers to find out who it is. But libel is libel,defamation is defamation. Even if someone does it anonymously in a chat room, ifyou can find out who it is, you still have your same remedies.

So where’s the line between libel andjust blowing off steam about your boss? Libel is a matter of state law. Ingeneral, libel is writing - so it would be an untrue and defamatory statementabout somebody that causes damage to their reputation. In California, forexample, there are a group of things you can write about somebody that would perse damage them. Some are quaint, like impugning a woman’s chastity. So if youwrite, “This manager is a slut,” that’s automatic liability.

Accusingsomeone of incompetence, or saying someone has a loathsome disease constituteslibel. But matters of opinion are not typically actionable - I think such andsuch is a jerk. It may be false, but it’s an opinion. It gets interesting whenyou have someone running around disparaging the company, and it’s not quitedefamatory, but you don’t want it.

What can you do - anything? Did they do it on duty or from theirhome computer? Clearly, if they use the company’s resources to do it, that’spreventable. If I’m at home and can’t sleep because I hate my boss and logon and say all sorts of not defamatory but highly insulting things about him,what can the company do? That will be governed in part by state law. But it’sdifficult. California this January effected a new statute saying an employercannot terminate somebody for engaging in lawful conduct away from theworkplace.

If your employee is in a bar bad-mouthing her boss and it’s notdefamatory, there’s nothing you can do, and there are other states withsimilar legislation. Now if she’s using her work time to disparage heremployer, a private employer, you don’t have to finance that.